What is an Independent Children’s Lawyer?An Independent Children’s lawyer is a lawyer who will represent your child’s best interests in the current family law court case.

W H Y W I L L M Y C H I L D

H A V E A L A W Y E R T O

R E P R E S E N T T H E M ?

Because your child won’t attend court, an

Independent Children’s Lawyer will tell the court

about your child’s welfare and views during the

case.

W H A T D O E S T H E

I N D E P E N D E N T C H I L D R E N ’ S

L A W Y E R D O ?

The Independent Children’s Lawyer will present

information to the court about your child’s welfare

and views.

Each child’s case is different but generally before

making a submission to the court, the Independent

Children’s Lawyer will:

1. Read all the affidavits.1

2. Examine any subpoenaed2 documents.

3. Talk with your child (depending on their age

and the circumstances of the case).

4. Talk to the family consultant and other

relevant people including teachers, doctors,

psychologists or counsellors to help inform

their recommendation to the court.

5. Listen carefully and consider the evidence3 if

a case goes to hearing. Not all information is

evidence; the Independent Children’s Lawyer

can only rely on evidence.

The Independent Children’s Lawyer then applies

family law cases and law to all this information.

While each case is different, the lawyer may look

at past similar cases to decide what submission

to make to the court. It is important to remember

that the Independent Children’s Lawyer will follow

the law.

With the evidence and this information, the

Independent Children’s Lawyer will form an

independent view of what is in the best interests

of the child to present to the court. The court will

also be made aware of any views expressed by

your child.

H O W W I L L T H I S

I N F O R M A T I O N B E

P R E S E N T E D T O T H E

C O U R T ?

At the court hearing, the Independent Children’s

Lawyer conducts the case for the child in the

usual way, including:

• cross examination

• presenting evidence

• making submissions.

W H E N D O E S T H E

I N D E P E N D E N T C H I L D R E N ’ S

L A W Y E R M A K E A

R E C O M M E N D A T I O N T O

T H E C O U R T ?

In some cases an Independent Children’s Lawyer

will know early in a matter what orders they seek

1 Affidavit - a written statement confirmed by oath or affirmation, for use as evidence in court.2 Subpoena - a document that compels a person to give evidence and or to produce documents in their possession to the court.3 Evidence – information in some form that proves or disproves an allegation.

on behalf of the child. If the Independent Children’s

Lawyer does know, then they will tell the parents’

lawyers or you if you are not represented by a

lawyer. This can help negotiations. In other cases,

the child’s best interests may be unclear and the

Independent Children’s Lawyer may be unable

to make a recommendation until much later or

sometimes not at all.

C A N T H E I N D E P E N D E N T

C H I L D R E N ’ S L A W Y E R

C H A N G E T H E I R

R E C O M M E N D A T I O N ?

Yes. An Independent Children’s Lawyer’s

recommendation will be based on the evidence

available at the time. If new evidence becomes

available before the court has made final orders, the

Independent Children’s Lawyer will need to consider

the impact of this on any recommendations.

D O E S T H E C O U R T A L W A Y S

M A K E T H E O R D E R S T H E

I N D E P E N D E N T C H I L D R E N ’ S

L A W Y E R A S K S F O R ?

The judge listens carefully to what everybody in the

case says and makes his or her decision based on

all evidence provided.

W H A T E L S E D O E S A N

I N D E P E N D E N T C H I L D R E N ’ S

L A W Y E R D O ?

• Encourages and takes part in any negotiations

to settle the matter in your child’s interests.

• Seeks that proper arrangements are made to

protect the child’s interests until the case is

finalised.

W H A T I S A F A M I L Y

R E P O R T / S I N G L E E X P E R T

R E P O R T ?

In difficult cases the court will order a written report

about a child, the parents and anybody else involved

in the matter. An application for this order will often

be made by the Independent Children’s Lawyer. This

report is prepared by a family consultant, social

worker, child and family psychologist or psychiatrist,

depending on the case. The information is obtained

by interviewing the people concerned in the matter.

The report will be released by the court and given to

your lawyer (or you if you are representing yourself)

and the Independent Children’s Lawyer. It may assist

in discussions leading to an agreement to settle the

case. If the case is not settled, the report will form

part of evidence considered by the judge.

W H A T H A P P E N S W H E N

T H E C A S E I S O V E R ?

• The Independent Children’s Lawyer explains

the court crders to your child (if they are old

enough to understand).

• The Independent Children’s Lawyer may also

be involved in follow up arrangements in

relation to any court crders.

•

I M P O R T A N T T H I N G S T O

R E M E M B E R

• Make sure your child attends all appointments

arranged by the Independent Children’s Lawyer.

• To ensure the Independent Children’s Lawyer

stays independent in the case he or she will

be limited in what they are able to discuss

with you, even if you are not represented by

a lawyer. If you are legally represented, any

matters you wish to raise should be raised

with your own lawyer who will contact the

Independent Children’s Lawyer.

• Please don’t question your child about his or

her sessions with the Independent Children’s

Lawyer. They should remain private and

between your child and the lawyer.

• Please allow your child to freely contact the

Independent Children’s Lawyer.

W H A T I F Y O U A R E

U N H A P P Y W I T H Y O U R

L A W Y E R ?

If you have a problem, it is always best to talk about

it with that person. But if you need more help, go to

your local State or Territory Legal Aid website.

You can find more information and videos about

the Independent Children’s Lawyers at http://www.

bestforkids.org.au/kids

This resource was produced by legal aid commissions throughout Australia who assert moral rights under the Copyright Act. This material may be reproduced, or excerpted, provided it is not changed, and authorship of legal aid commissions is acknowledged.

The material in this publication is intended as a general guide only. Readers should not act on the basis of any material in this publication without getting legal advice about their own particular situations. The legal aid commission in this state or territory expressly disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of this publication.

© October 2014